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The Mainstream Patent Pendulum Swings Back

In my article “Radical Patent Reform Is Not on the Way” I noted that the the organized patent bar and intellectual property (IP) advocates routinely decry proposed changes to patent law as “radical.” Patent attorney John R. Harris, for example, ominously intones:

The U.S. has the best patent system in the world. What I’m afraid of is that they are about to throw the baby out with the bathwater.… The new rules are radical. The new legislation is radical. They will cause fewer patents to be issued.

But, as I noted, patent law is always evolving due to court decisions, new rules issued by the PTO, and new legislation from Congress. None of it is really that significant (see Patent Reform Is Here! O Joy!). It’s all nibbling around the edges–just like the entrenched interests like it.

In fact, though various details of the patent system continue to morph pursuant to political pressures and legal trends, the essential aspects of the patent system have not changed at all: The scope of what is patentable has not shrunk appreciably. The term is still about seventeen years. Patents are still enforceable by injunction. The groundless presumption of validity is alive and well. Patent defendants who win usually pay their own legal fees, as before. Defending patent lawsuits continues to be incredibly expensive. Lobbying goes on as before. Companies continue to need to obtain patents if only for defensive purposes (Google offered over 3 billion recently for Nortel’s 6,000-patent portfolio, and lost; now it will have to lobby Congress and hire more patent lawyers to try to acquire a patent arsenal and defense strategy–yeah, a real productive use of its hard-earned profits).

Obviousness and novelty remain the standards for patentability — and these standards are still vague, nonobjective, and subject to unpredictable interpretation by an inept and bureaucratic government agency, by state courts, and by technically inept juries. And the patent system is still widely believed to be legitimate and necessary even while it is widely derided as seriously flawed.

And so, for the foreseeable future, companies will continue to spend lots of money obtaining patents. And small businesses will still face the threat of patent-infringement lawsuits and court-ordered injunctions that could put them out of business. And these suits will continue to cost literally millions of dollars to defend. “Bad” patents will keep being granted, and various patentability standards will always be murky, arbitrary, and uncertain.

And a recent round-up by Columbia Law Professor Ronald Mann of recent U.S. Supreme Court decisions confirms this assessment (Tide turns for Federal Circuit in patent cases). Mann examines how the Supreme Court has treated the lower Federal Circuit’s patent decisions recently. As Mann notes:

One of the most interesting features of the just-ended Term’s decisions is the surprising resurgence of the Federal Circuit.  For almost a decade, the Court has been on an apparent campaign to rein in “patent exceptionalism” at the Federal Circuit.  Thus, in a series of cases starting with eBay v. MercExchange, the Court has reversed pro-patent decisions of the Federal Circuit that rely on doctrinal peculiarities developed at the Federal Circuit level.  eBay itself rejected a presumption in favor of injunctive relief.  KSR v. Teleflex forced up the threshold for establishing that a patent describes an invention that is not “obvious” in light of prior art.  And although it affirmed the judgment of the Federal Circuit in Bilski v. Kappos, the Court implemented a major retrenchment in the Federal Circuit’s decade-long experiment in permitting relatively unbounded patenting of business methods.

In other words, even the relatively minor limits the Supremes placed on the Federal Circuit’s patent decisions in recent years is now going the other way. All those judges are just employees of the federal government. It’s unreasonable to expect them to systematically rule against their own interest.

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To the extent possible under law, Stephan Kinsella has waived all copyright and related or neighboring rights to C4SIF. This work is published from: United States. In the event the CC0 license is unenforceable a  Creative Commons License Creative Commons Attribution 3.0 License is hereby granted.